Carter v. Davis et al
Filing
3
MEMORANDUM OPINION. Signed by District Judge Leonie M. Brinkema on 10/16/14. (pmil, )
IN THE UNITED STATES DISTRICT COURT FOR^TJHE—
EASTERN DISTRICT OF VIRGINIA
F_J
H
Alexandria Division
U
Jacori Andre' Carter,
Plaintiff,
L
OCT I62014 \\J)
CLEr.K, U.S. DiST?::c iCTHJHT
ALEXANDRIA. VIRGINIA
l:14cv!065(LMB/IDD)
Keith Davis, et ah,
Defendants.
MEMORANDUM OPINION
Jacori Andre' Carter, a Virginia inmate proceeding pro se, has filed a civil rights action,
pursuant to 42 U.S.C. § 1983, naming as defendants Keith Davis, Warden of Sussex I State
Prison ("Sussex"); Joycetine Boone, Assistant Warden of Sussex; Edward Curry, a correctional
officer; and E. Martin, a correctional officer. Plaintiffalleges that the defendants violated his
First, Eighth, and Fourteenth Amendment rights. Plaintiff has not submitted the filing fee
required by 28 U.S.C. § 1914(a) or applied to proceed in forma pauperis. Additionally, for the
reasons stated below, this complaintdoes not conform to all requirements for § 1983 civil
actions, and plaintiff will be directed to provide additional information.
I.
Plaintiffalleges that on the morning of March 31, 2014, he asked defendant Curry to
notarize some legal papers. Compl. 4. Curry took the papers; however, when the papers were
returned, they allegedly had food spilled on them. Id. Plaintiff filed several informal and formal
complaints in response to this occurrence. See id. at 4-5.
On April 1, 2014, plaintiffwas informed that he would no longer be receiving his
Common Fare diet,' and would be receiving arestricted diet. Id at 6. Plaintiff had been approved
The Common Fare Diet is essentially a Kosher diet, and was developed by VDOC to meet
to participate in the Common Fare diet in 2009, as the diet satisfies the tenets of Sunni Islam,
plaintiffs religion. Id. at 14-15. Plaintiff allegedly "did not receive a Disciplinary Offense
Charge to mandate" his restrictive diet, and did not know why he was being placed on the
restrictive diet. Id at 6. On June 5, 2014, plaintiff learned from defendant Boone that defendant
Martin had placed him on the restrictive diet due to his "disruptive behavior during the feeding
process on [March 31, 2014]." Id at 8. Martin allegedly placed plaintiff on the restrictive diet
after defendant Curry observed plaintiff "throwing water from under his cell door during dinner
feeding." Id at 9.
Curry charged plaintiffwith Offense 237A: Throwing/Smearing/Pouring/Discarding
Food/Trash/Bodily Waste; however, at plaintiffs disciplinary hearing, the hearing officer
determined that the offense should have been charged as Offense 237B: Intentionally Flooding
Any Area. Id at 9. Plaintiff argues that defendant Curry "intentionally" applied the wrong
offense code in order to suspend plaintiffs Common Fare diet, in retaliation for plaintiffs
complaint against Curry for damaging his legal papers. Id at 10, 14. Plaintiff argues that he was
unable to eat anything for the seven days that he was on the restricted diet. Id at 14. As a result,
he suffered weight loss, abdominal pain, and "severe emotional and mental distress." Id. at 16.
II.
District courts have a duty to construe pleadings by pro se litigants liberally; however, a
pro se plaintiff must nevertheless allege a cause of action. Bracev v. Buchanan. 55 F. Supp. 2d
the religious dietary needs of many faiths. See Acoolla v. Aneelone. 2006 WL 2548207 at *3
(W.D. Va. Sept. 1, 2006). Because it is "much more expensive" than normal prison fare, an
inmate must apply to receive it at his institution. An institutional committee reviews the
application, gathers facts about the inmate's religious practices, and approves or denies the
request. The decision is then reviewed by a Common Fare Diet committee in Richmond. An
inmate's application is approved only if the committee is satisfied that he is a sincere adherent of
a religion that requires the elements of the Common Fare Diet. Id.
416,421 (E.D. Va. 1999). To state a cause of action under § 1983, a plaintiff must allege facts
indicating that he was deprived of rights guaranteed by the Constitution or laws of the United
States and that this deprivation resulted from conduct committed by a person acting under color
of state law. See West v. Atkins. 487 U.S. 42 (1988). Moreover, each named defendant must
have had personal knowledge of and involvement in the alleged violations of plaintiffs
constitutional rights for the action to proceed against that defendant. As presented, plaintiff has
not stated a claim against any of the named defendants, but because plaintiff is proceeding pro
se, he will be granted an opportunity to particularize and amend his complaint.
A.
Defendants Keith Davis and Joycetine Boone
Plaintiff alleges that defendants Davis and Boone, the warden and assistant warden,
respectively, of Sussex, violated plaintiffs First and Eighth Amendment rights by acting with
deliberate indifference, exposing plaintiff to an unreasonable risk of serious harm, depriving
plaintiff ofa basic human need, and depriving plaintiff of the right to follow the practices of his
religion, specifically, by denying him the ability to "eat[] Kosher food." Compl. 18.
Supervisory officials such as Davis and Boone may be held liable for constitutional
injuries inflicted by their subordinates only in certain circumstances. See Shaw v. Stroud. 13
F.3d 791, 798 (4th Cir. 1994) (citing Slakan v. Porter. 737 F.2d 368 (4th Cir. 1984)). This
liability is not premised on respondeat superior, but upon "recognition that supervisory
indifference or tacitauthorization of subordinates' misconduct may be a causative factor in the
constitutional injuries they inflict on those committed to their care." Id at 798 (quoting Slakan.
737 F.2d at 372-73). "[Liability ultimately is determined 'by pinpointing the persons in the
decisionmaking chain whose deliberate indifference permitted the constitutional abuses to
continue unchecked.'" Id To establish supervisory liability under § 1983, a plaintiff must
demonstrate:
(1) that the supervisor had actual or constructive knowledge that his subordinate
was engaged in conduct that posed "a pervasive and unreasonable risk" of
constitutional injury to citizens like the plaintiff; (2) that the supervisor's response
to that knowledge was so inadequate as to show "deliberate indifference to or tacit
authorization of the alleged offensive practices,"; and (3) that there was an
"affirmative causal link" between the supervisor's inaction and the particular
constitutional injury suffered by the plaintiff.
Id at 799 (citations omitted).
Here, plaintiff alleges only that Davis and Boone knew that plaintiff was no longer
receiving a Common Fare diet. Plaintiffdoes not allege that Davis or Boone had any actual or
constructive knowledge of constitutional violations by their subordinates. In addition, plaintiff
does not allege any causal link between the knowledge that plaintiff was no longer receiving a
Common Fare dietand a potential constitutional violation by prison staff. Therefore, in his
amended complaint, plaintiff will be given an opportunity to allege specific facts showing that
Davis and Boone had actual or constructive knowledge of constitutional violations.
Plaintiff also alleges that defendant Boone violated plaintiffs Fourteenth Amendment
Due Process rights by instituting disciplinary procedures without giving plaintiff the opportunity
to call witnesses, have a hearing, or present evidence, see Compl. 19-20; however, the exhibits
attached to his complaint contain a record of a disciplinary hearing on April 17, 2014. See Ex. K.
Because plaintiffs own pleadings clearly establish no Due Process violation by defendant
Boone, this claim will be dismissed with prejudice, pursuant to 28 U.S.C. § 1915A(b)(l).2
2Section 1915A provides:
(a) Screening.—The court shall review, before docketing, if feasible or, in any
event, as soon as practicable after docketing, a complaint in a civil action in which
a prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.
B.
Defendant Edward Curry
Plaintiffalleges that defendant Edward Curry violated plaintiffs Eighth Amendment
rights by deliberately exposing him to an unreasonable risk of serious harm and by "falsifying" a
disciplinary charge against plaintiff in retaliation for a previous administrative grievance filed
against Curry. He also alleges that Curry violated his First Amendment rights by denying him his
Common Fare diet, and violated his Fourteenth Amendment Due Process rights by denying him
witness testimony, the opportunity for a hearing, and the ability to present evidence at a
disciplinary hearing.
Although not stated explicitly, plaintiffs first allegation against defendant Curry appears
to be a claim of cruel and unusual punishment based on the conditions of his confinement. To
properly state a claim for cruel and unusual punishment due to conditions of confinement that
violate the Eighth Amendment, a plaintiff must allege facts sufficient to show (1) an objectively
serious deprivation ofa basic human need, that causes serious physical or emotional injury, and
(2) that prison officials were deliberately indifferent to that need. Farmer v. Brennan. 511 U.S.
825, 834 (1994); Wilson v. Seiter. 501 U.S. 294, 198 (1991). To meet the first prong, plaintiff
must allege facts sufficient to show that the condition complained of was "sufficiently serious."
Farmer. 511 U.S. at 834. Only extreme deprivations will make out an Eighth Amendment claim,
and it is plaintiffs burden to allege facts sufficient to show that the risk from the conditions of
(b) Grounds for dismissal.—On review, the court shall identify cognizable
claims or dismiss the complaint, or any portion of the complaint, if the
complaint—
(1) is frivolous, malicious, or fails to state a claim upon which
relief can be granted; or
(2) seeks monetary relief from a defendant who is immune from
such relief.
his confinement was so grave that it violated contemporary notions of decency and resulted in
serious orsignificant physical or emotional injury. Hudson v. McMillian. 503 U.S. 1, 8 (1992);
Stricklerv. Waters. 989 F.2d 1375, 1379-81 (4th Cir. 1993). To meet the second prong, plaintiff
must allege facts sufficient to show that defendants knew of facts from which an inference could
be drawn that a "substantial risk ofserious harm" was posed to his health and safety, that they
drewthat inference, and then disregarded the risk posed. Farmer. 511 U.S. at 837.
Here, plaintiff has not alleged any specific acts of cruel and unusual punishment by
Curry, otherthan stopping the provision of a Common Fare diet to plaintiff because of
disciplinary actions. Plaintiff does not allege that such deprivation seriously affected his health,
and does not allege any facts sufficient to show that Curry disregarded a risk of substantial harm
to plaintiff. As plaintiff is proceeding pro se, however, he will be allowed an opportunity to
particularize and amend his allegations.
In his second allegation against Curry, plaintiff alleges that, in response to an earlier
grievance filed by plaintiff, Curry falsified a disciplinary charge and "intentionally" proceeded
with an incorrect offense code. See Compl. 20. Although not stated explicitly, this claim appears
to be one of retaliation. To properly statea § 1983 claim for retaliation, however, an inmate
must show that the allegedly "retaliatory act violated some constitutional right
or
constituted punishment for the exercise of a constitutional right." Cochran v. Morris. 73 F.3d
1310, 1318 (4th Cir. 1996). An inmate must allege facts demonstrating that his exercise of a
constitutional right was a substantial factor motivating the retaliation. See Wagner v. Wheeler.
13 F.3d 86,90-91 (4th Cir. 1993). In addition, plaintiff must show a sufficiently adverse impact
on a constitutional right as a result of the retaliatory action. ACLU of Maryland. Inc. v.
Wicomico. 999 F.2d 780,785 (4th Cir. 1993). Where a plaintiff has not alleged an impairment of
his constitutional rights, "there is no need for the protection provided by a cause ofaction for
retaliation;" therefore, a showing ofadversity is essential to any retaliation claim. Id Finally,
plaintiffmust demonstrate that prison officials' actions did not advance legitimate penological
objectives. Talbert v. Hinkle. 961 F. Supp. 904, 911 (E.D.Va. 1997) (citing Pell v. Procunier.
417 U.S. 817, 822(1974)).
Plaintiffs allegations do not support a claim for retaliation. Plaintiff fails to adequately
allege that the exercise of some constitutional right, such as his First Amendment right, was the
actual motivation for Curry's retaliation. In addition, plaintiff fails to allege that his
constitutional rights were sufficiently impacted as a result ofCurry's actions, orthat Curry's
actions did not serve any legitimate penological purpose, such as maintaining the safety ofother
inmates or maintaining order in the facility. As plaintiff is proceeding pro se, however, he will be
allowed an opportunity to particularize and amend his allegations.
Plaintiffs third claim against Curry arises under the Free Exercise Clause of the First
Amendment. To prevail on this claim, plaintiffmust allege facts sufficient to make two threshold
showings. See McManus v. Bass. No. 2:05cvl 17, 2006 WL 753017, at *4 (E.D. Va. 2006)
(citing Wisconsin v. Yoder. 406 U.S. 205, 215-16 (1972)). First, plaintiff must allege facts
sufficient to show that he sincerely holds his religious beliefs. Second, he must show that his
claims are rooted in his particular religious belief, rather than in "purely secular concerns." Id.
(quoting Yoder. 406 U.S. at 215-16). If plaintiff makes the threshold showing that his Free
Exercise rights have been infringed, courts analyze his claim under the reasonableness test set
forth in Turner v. Saflev. 482 U.S. 78, 79 (1987). Under this test, a court "is required to
determine whether a prison policy or regulation burdens the right to free exercise of religion,
and, ifso, whether a prison policy or regulation is reasonably related to a legitimate penological
interest." Lovelace v. Lee. 472 F.3d 174, 199 (4th Cir. 2006).
On the present facts, plaintiff has not stated a claim against Curry for violation of his
First Amendment Free Exercise rights. Specifically, he has failed to satisfy the threshold
showing that his Free Exercise rights were burdened. In addition, he has failed to allege that his
failure to receive a Common Fare diet was not reasonably related to legitimate penological
concerns. As plaintiff is proceeding pro se, however, he will be allowed an opportunity to
particularize and amend his allegations.
Plaintiffs last claim against defendant Curry is an assertion that Curry violated his
Fourteenth Amendment Due Process rights by disciplining him without an opportunity for a
hearing or to present witness testimony. The Due Process Clause mandates procedural
safeguards before an inmate can be punished by conditions so dramatically different from the
basic range ofconstraints contemplated by his sentence. See Sandin v. Conner. 515 U.S. 472,
483-84 (1995). As the Supreme Court recognized in Sandin. such liberty interests "will
generally be limited to the freedom from restraint which, while not exceeding the sentence in
such an unexpected manner as to give rise to protection by the Due Process Clause by its own
force, nonetheless imposes atypical and significant hardship on the inmate in relation to the
ordinary incidents ofprison life." Id at484. On the other hand, the protections ofthe Due
Process Clause do not attach unless the plaintiff was deprived ofsuch a liberty interest. Lekas v.
BrUey., 405 F.3d 602, 607 (7th Cir. 2005). From the documents provided by plaintiff, it appears
that he was actually given a disciplinary hearing on the charge of"intentionally flooding any
area," on April 17, 2014. See Compl. Ex. K. Because plaintiffs own pleadings clearly establish
no Due Process violation by defendant Curry, this claim will be dismissed with prejudice.
8
C.
Defendant E. Martin
Plaintiff alleges that defendant Martin violated his Eighth Amendment rights by acting
with deliberate indifference to a harmful condition, and by depriving him of a "basic human
need," which he describes as the Common Fare diet. Compl. 22. Plaintiffargues that Martin was
aware of the risk caused by the failure to provide him with Kosher meals, and responded to
plaintiffs informal complaints in a "threatening" manner. Id. Plaintiff also argues that Martin
violated his FirstAmendment Free Exercise rights by denying him access to Kosher meals, and
violated his Fourteenth Amendment Due Process rights by disciplining him without the
opportunity for a hearing or witness testimony. This last claim will be dismissed for the same
reasons stated above in relation to defendant Boone and Curry.
To the extent that the remainder of plaintiffs claims against Martin contain the same
allegations as are made against Curry, plaintiff has failed to state a claim on these issues, butwill
be allowed an opportunity to particularize and amend his allegations based on the legal standards
laid out above.
III.
Additionally, "[n]o action shall be brought with respect to prison conditions under [42
U.S.C. § 1983], or any other Federal law, by a prisoner confined inany jail, prison, or other
correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C.
§ 1997e(a); see Woodford v. Neo. 548 U.S. 81, 92 (2006) (requiring complete exhaustion of
correctional facility administrative remedies). Plaintiff, as a Virginia inmate, is required to
exhaust the claims raised in the instant complaint inaccordance with the Virginia Department of
Corrections ("VDOC") grievance procedures. In particular, he must comply with VDOC
Department Operating Procedure ("DOP") 866, which provides multiple levels of administrative
remedies in the form of inmate grievances. Per DOP 866-7.13, an inmate must first attempt to
resolve any issues informally. Prison officials must respond to the inmate's complaint within
fifteen days of receiving an informal complaint. See DOP 866-7.13. After seeking informal
resolution, an inmate may file a regular grievance with the warden or superintendent. The
grievance must be filed within thirty days of the underlying incident or occurrence. See DOP
866-7.14. Depending on the subject ofthe grievance, up to two additional levels ofreview by
higher authorities within VDOC may beavailable following the filing of a regular grievance. See
DOP 866-7.15.
It is unclear at this time whether plaintiff has completely exhausted all available
administrative remedies. Before this action may proceed, plaintiff will be required to submit
additional information concerning his exhaustion of administrative remedies, in the form of the
attached exhaustion affidavit.
Lastly, Plaintiff is advised that the required fees for filing a civil action in federal court
have increased to $400.00, consisting of a $350.00 filing fee and a $50.00 administrative fee. If
plaintiff qualifies for in forma pauperis status he will only have to pay the $350.00 filing fee.
IV. Conclusion
For the reasons stated above, plaintiffs Due Process claims will be dismissed pursuant to
28 U.S.C. § 1915A(b)(l), he will be given an opportunity to particularize and amend his other
claims, and will be asked to provide more information regarding his exhaustion of administrative
remedies and financial information. An appropriate Order will be issued with this Memorandum
Opinion.
Entered this lip
day of QoJ-iy/uA^
2014.
Alexandria, Virginia
j0
Leonie M. Brinkfema
United States District Judge
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